World·Analysis

Comey's choice — announce investigation himself or read about it in the papers: Keith Boag

If FBI Director James Comey wanted it known that the Hillary Clinton email investigation is back on, he could have simply handled that information in the usual way — by letting it leak out through unnamed sources.

Unnamed FBI sources have been leaking information throughout the campaign

FBI Director James Comey is sworn in before testifying at a House Oversight and Government Reform Committee about the investigation into Hillary Clinton's email servers while she was secretary of state. (Gary Cameron/Reuters)

It seems FBI Director James Comey deserves a rap on the knuckles for telling Congress that the investigation into Hillary Clinton's emails is back on when he could have simply handled that information in the usual way — by letting it leak out through unnamed sources. 

FBI leaks have shown up in the media quite regularly this campaign without raising awkward questions about whether the officially non-partisan federal agency is trying to put its thumb on the election scales.   

Partly that's because the media are complicit in leaks.

Consider two of the FBI's current and politically consequential investigations — one into the Clinton Foundation, the other into Donald Trump's former campaign manager, Paul Manafort, and his alleged ties to Russia.

The FBI apparently passed details about those cases to reporters and it didn't cause any of the fuss Comey's decision has.

Here's how The New York Times handled it just this week under the straight-faced headline "FBI's Email Disclosure Broke a Pattern Followed Even This Summer." Halfway into the story we read:

"The cases involving Mr. Manafort and Mrs. Clinton were described by federal law enforcement officials who spoke on the condition of anonymity because they were not authorized to discuss open investigations."

See? Easy.

Comey said too little, not too much

But Comey broke that pattern by getting ahead of a leak.

Now, if you're thinking that the Clinton email case is different because it's so much more explosive then you've probably arrived close to the conclusion that Jack Goldsmith and Benjamin Wittes, scholars at the Brookings Institution, reached about what Comey did: "It's not clear what realistic alternative Comey might have had," they say in a lengthy autopsy of all his decisions in the case.

An important part of their conclusion rests on the reasonable belief that "had Comey not made some kind of statement, the information would have leaked in a manner far more harmful to Clinton," and that there would have been more severe consequences "for the integrity and public trust of the institution he heads, the FBI."

Harvard law professor Jack Goldsmith, left, and Brookings Institution scholar Benjamin Wittes say, 'It's not clear what realistic alternative Comey might have had' given that leaks were likely. (Harvard Law School/Brookings Institution)

In other words, if information about the Clinton emails had instead leaked this week, you-know-who would almost certainly have claimed the FBI had tried to cover up the facts to rig the election.

Comey's mistake, Goldsmith and Wittes believe, was not that he said too much but that he said too little.

In particular, they think he could have been clear and forceful about what people should not read into his Friday statement — that, among other things, "nobody should draw any conclusions about anyone's conduct based on the fact the FBI is reviewing these emails," the scholars wrote.

FBI leaks have been around since Hoover

But the important point is that politically sensitive leaks had become an unsustainable reality for the director of the FBI.

As if to confirm that, within minutes of Comey's announcement Friday, news that the emails in question were related to former congressman Anthony Weiner leaked out.

And then, 48 hours later, the Wall Street Journal published sensational details of turmoil in the bureau under the headline "FBI in Internal Feud Over Hillary Clinton Probe," a story based almost entirely on leaks from within the FBI.

Of course, the FBI has a history of surreptitiously managing politically sensitive information. Evidence of that goes all the way back to its first director, J. Edgar Hoover, who was known for using leaks and even the threat of leaks.

But it's not so many years ago an associate director of the FBI leaked politically fatal information about a sitting president to a couple of newspaper reporters — and they all became heroes and legends.

The associate director, Mark Felt, is still better known as "Deep Throat," but it's the two reporters, Bob Woodward and Carl Bernstein, we remember for breaking the Watergate story.

Bizarrely, while Felt was leaking the FBI's case against President Richard Nixon to Woodward and Bernstein, his boss, FBI Director Pat Gray, was burning evidence in an effort to protect Nixon.

Washington's an odd little world that way.

Some believe that Comey has done Clinton a favour by lifting the veil on the FBI's investigation because it proves they aren't giving her special breaks.

Others think he's unnecessarily exposed her to limitless, baseless accusations and innuendo.

The final judgment will depend to some degree on whether she wins the election on Tuesday. 

Deja vu for Clinton?

Potentially most worrisome for Clinton are the divisions within the FBI about how aggressively to pursue her and how easily all that winds up in the media.

It probably all sounds familiar to Clinton.

When Ken Starr investigated the Clintons 20 years ago, details were routinely leaked to the media. Starr is seen here earlier this year, while he was president of Baylor University. (Rod Aydelotte/Waco Tribune Herald, via AP)

Twenty years ago she claimed "a vast right-wing conspiracy" was trying to bring down the presidency of her husband Bill.

The tools of the conspiracy, she believed, included the powers of investigation and subpoena held by the Office of the Independent Counsel, Ken Starr, plus a sleaze-hungry media that was out to get them.

Starr's office used the pretext of a fruitless probe into the Clintons' Arkansas business dealings to investigate whether the president had lied about having sex with a White House intern.

All the details were routinely leaked and the whole thing ended with Clinton's impeachment and acquittal.

Or did it end there?

 If she does move back into the White House, she'll doubtless be on guard for enemies once again seeking ways to pervert the institutions of justice against her.

Already Republicans are promising that Clinton is in for four years of investigation and gridlock in Congress if she's elected.​

Follow the U.S. election on Tuesday, Nov. 8 with CBC News

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ABOUT THE AUTHOR

Keith Boag

American Politics Contributor

Keith Boag writes about American politics and issues that shape the American experience. Keith was based for several years in Los Angeles and now, in retirement after a long career with CBC News, continues to live in Washington, D.C. Earlier, Keith reported from Ottawa, where he served as chief political correspondent for CBC News.

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